It was disappointing that the Court of Appeals (COA) has rendered a unanimous decision in favor of APMC, a subsidiary of YTL, in a land dispute case under Order 89, against the Malaysia Dhamma Sakyamuni Monastery.

The Court of Appeal on 5th September reversed the High Court judgment and ordered that the monastery to be evicted. The panel comprised Azizah Nawawi, See Mee Chun and Mohd Zaini CAJJ.  Nahendran Navaratnam was lead counsel for the landowners APMC (subsidiary of YTL Cement) and Chan Kok Keong appeared for the Monastery.

The Court of Appeal held that no triable issues had been raised and there was no suppression of material facts by APMC. The Monastery’s request for a stay of execution was turned down by the Court. The appeal was conducted online.

In allowing the appeal, the court accepted APMC’s argument that as registered owners they were entitled to succeed in a summary application for possession. The Monastery’s Counsel argued but, unsuccessfully, that the court should confine itself only to whether the summons filed complies strictly with the provisions of Order 89 of the Rules of Court which has the effect of evicting the occupants without a trial.  The Monastery’s Counsel also submitted that there were triable issues regarding the existence of implied consent by both APMC and the State Government.  It was submitted that APMC had assured the Monastery that they will be allowed to coexist with the quarry as recorded in the minutes of meetings and visits to the Monastery by representatives from APMC. 

On implied consent by the State, it was argued that there was continued intervention, concern and acquiescence by reason of the suspension of blasting operations and also the undertaking to preserve all the cave temples in the Kinta Valley.  The State had declared the area enclosing the Monastery as a Geopark in 2017. It was also pressed by the Monastery’s Counsel that the High Court’s finding that there was suppression of material facts rendered all the issues raised as triable.  Furthermore, that the affidavit evidence should be subject to cross examination and the claim for possession should not be made without a trial. 

In the High Court, it was held that the Plaintiff has abused the flexibility provided under Order 89 and provided misleading facts to this court. It was also held that the Monastery “occupied the said land with the implied consent of the plaintiff and its predecessor. 

Reference was also made to a letter to the MB (Chief Minister of Perak) dated 12 January 2021 at paragraph 48 of the written judgment “pihak YTL yang baru sahaja diperbaharui lesen… telah mengarahkan pihak Biara supaya berpindah ke tempat lain. Hal ini telah menggusarkan pihak Biara kerana isu lama yang telah diselesaikan pada tahun 2015 kembali semula mengganggu pihak Biara untuk meneruskan keagamaan dengan selamat.”

The High Court also found that APMC by reason of concealing material and substantial facts have disentitled themselves to any relief as they did not come to court with clean hands.

Upon dismissal of APMC’s application in the High Court on 4th October, the Judge made no order as to cost.  Whilst allowing the appeal, the Court of Appeal also ordered both parties to bear their own cost.

Statement issued by Reverand Dr. Chiong Sai Tin on behalf of the Malaysia Dhamma Sakyamuni Monastery